Joint Committee on Human Rights Written Evidence

9.  Memorandum from Professor Brice Dickson, Professor of International and Comparative Law, Queen's University Belfast

Is a British Bill of Rights needed?

  Yes, because the Human Rights Act is not as comprehensive a human rights document as Britain requires in this day and age. A more comprehensive Bill of Rights would emphasise that Britain is committed to upholding human rights not just because the Council of Europe requires it to protect "Convention rights" but also because the people of Britain want to live in a society which places a high value on adherence to a wider range of human rights standards. Although such a Bill of Rights would not be fully entrenched (it could not be in a legal system that is built upon the doctrine of Parliamentary sovereignty) it would be a clear and (politically) hard-to-repeal statement of some the fundamental values underpinning the governance of the nation. It would help to promote solidarity and a concept of Britishness.

What should be in a British Bill of Rights?

  In short, the Bill should set out a list of the rights which the UK Parliament feels are fundamental to the British way of life. Many of these are already listed in the Human Rights Act 1998 (ie the "Convention rights" set out in Schedule 1 to that Act), so the Bill should embrace that list. As well, the list should include the right to fair administration, the right to jury trial for serious offences, the right to health care, the right to a home for those who are not intentionally homeless, the right to an adequate standard of living, the right not to be discriminated against on the grounds of disability, sexual orientation, genetic features, possession of a criminal conviction or residence, and the right to privacy.

  Most of these "non-Convention rights" are already recognized to some extent by the legal systems of England and Wales and Scotland, but the Bill of Rights is an opportunity to ensure that the rights are better protected and given a status equivalent to the Convention rights protected by the Human Rights Act. They would not, of course, be unlimited rights: limitations could either be written into each relevant section in the Bill of Rights or (preferably) set out in a more generally worded section on limitations. It is totally anomalous that rights which happen to have been protected by the European Convention in 1950 should be given a higher legal status in the UK today than other rights which are every bit as fundamental to the British way of life in the early part of the 21st century. It is not enough that some of these non-Convention rights are to some extent protected by case law or by legislation. They need to be strengthened by giving them a status equivalent to Convention rights—so that senior judges can declare legislation which violates those rights to be incompatible with the Bill of Rights.

Should the British Bill of Rights include responsibilities?

  I see no difficulty in including some responsibilities in the Bill of Rights, provided it is made clear that a person's entitlement to rights is not dependent on his or her having fulfilled these responsibilities. The Convention rights in the Human Rights Act 1998 already include some responsibilities—see the wording of Articles 8 (2), 9 (2), 10 (2), 11(2) and 17, and also Article 1 of Protocol 1. Article 17 of the European Convention is often forgotten: it effectively says that no State, group or person has the right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set out earlier in the Convention, or at limiting them to a greater extent than the Convention allows. This is tantamount to asserting that everyone has the responsibility to recognize the rights and freedoms of others (including those which Articles 8 (2), 9 (2), 10 (2) and 11 (2) accept can limit other individuals' rights).

  Responsibilities, or duties, are already mentioned in some modern Bills of Rights, such as the African Charter on Human and People's Rights of 1981 and the Victorian Charter of Rights and Responsibilities of 2006. India amended its Constitution in 1976 by inserting a new section 51A listing more than 10 duties of every citizen of India. These include the duties to "renounce practices derogatory to the dignity of women", "to safeguard public property and abjure violence", and "to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement'. Inserting some responsibilities in a British Bill of Rights could help to sell the notion of a Bill of Rights to a sceptical public and the provisions would not have to go beyond existing legal duties (eg to respect the law, to recognise the value in having a diverse and pluralistic society, and to treat people with dignity). It would be better if the Bill of Rights did not say what the sanctions are for not meeting one's responsibilities: this should be left to existing law.

  There are precedents for such hortatory provisions within UK law. For example, section 1 of the Constitutional Reform Act 2005 asserts that there is an "existing constitutional principle of the rule of law', while section 3 (1) states that the Lord Chancellor, other Ministers and everyone who has responsibility for matters relating to the judiciary or otherwise to the administration of justice "must uphold the continued independence of the judiciary".

What should be the relationship with the Human Rights Act and international human rights obligations?

  The Human Rights Act 1998 has served the country well to date. Allowing senior judges to declare primary legislation to be incompatible with Convention rights, rather than giving them the power to declare such legislation to be invalid, is a good compromise between the doctrine of absolute Parliamentary sovereignty and a US-style doctrine of constitutional judicial review. A British Bill of Rights should therefore build on the Human Rights Act by placing the additional rights within the same implementation framework as is used for Convention rights, although, of course, there would not necessarily be the option of lodging an application in Strasbourg if the UK courts did not uphold the interpretation of the additional right argued for by a litigant.

  To the extent that the British Bill of Rights is to include rights already recognized by international human rights treaties which the UK has ratified, care should be taken to ensure that the wording of the right in the Bill is not inconsistent with the wording of the right in the treaty. This would apply, for example, to children's rights, the rights of persons with disabilities, and economic and social rights.

What should be the impact of a British Bill of Rights on the relationship between the executive, Parliament and the courts?

  As noted above, I am firmly of the view that the new Bill of Rights should build upon the model of the Human Rights Act, which means that the relationship between the executive, Parliament and the courts created by that Act should be perpetuated by the British Bill of Rights. The new Bill should contain a provision comparable to section 19 of the Human Rights Act, whereby a Minister in charge of a Bill in either House of Parliament should have to make a statement to that House on the extent to which the proposed Bill is compatible with the Bill of Rights. Section 10 of the 1998 Act (power to take remedial action) should also be mirrored in the new Bill of Rights.

The relevance of the Northern Ireland dimension to this debate

  Having chaired the Northern Ireland Human Rights Commission for its first six years (1999 to 2005) I have been centrally involved in trying to devise a "Bill of Rights for Northern Ireland" (a document which the Belfast (Good Friday) Agreement contemplates but does not actually require). During that time many of the issues now arising for consideration concerning a British Bill of Rights had to be confronted in a Northern Ireland context. I am convinced that the best way forward, both in Northern Ireland and in the rest of the United Kingdom, is to build upon the Human Rights Act, especially its implementation mechanisms. Those mechanisms have allowed a conversation to develop between the executive, Parliament and the judges as to how best to reform the legal system to ensure that human rights are appropriately protected. The Northern Ireland Human Rights Commission, in 2004 and 2005, stated that it was in favour of a Bill of Rights for Northern Ireland which would take the form of a Bill of Rights for Northern Ireland Act, passed at Westminster after being approved by the Northern Ireland Assembly and by a referendum in Northern Ireland. The Bill of Rights for Northern Ireland Act would include a provision stating that "The Convention rights as set out in the Human Rights Act 1998 shall be considered a part of the Bill of Rights for Northern Ireland". I am not sure if this is still the thinking of the Northern Ireland Human Rights Commission—the Commission may well be officially agnostic on the point at present because none of the current members of the Commission was a member at the time of the 2004 and 2005 statements and the Commission is in any event awaiting the recommendations of the Bill of Rights Forum in Northern Ireland, which is due to report to the Commission by the end of March 2008.

  The suggestion that there should be a British Bill of Rights has complicated the debate in Northern Ireland. Does "British" embrace Northern Ireland or not? If yes, where does that leave the suggestion in the Belfast (Good Friday) Agreement that there could be a Bill of Rights just for Northern Ireland? If no, might this not alienate people of a unionist frame of mind in Northern Ireland, who could feel that somehow their Britishness was being compromised if they were given a Bill of Rights which was different from the one applying elsewhere in the United Kingdom and which, if the Belfast (Good Friday) Agreement is followed to the letter, was to be supplemented by a comparable human rights document in the Republic of Ireland? My own view is that there should be a Bill of Rights for the whole of the United Kingdom (just as the Human Rights Act applies throughout the United Kingdom) but that each separate legal system within the UK should then be free to devise an additional Bill of Rights going further than the national Bill of Rights has gone and dealing with particular matters that are of concern to that legal system. These additional Bills of Rights would best be enacted as Westminster legislation, thereby placing them beyond repeal or amendment by any devolved legislature.

7 January 2008

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